Altruism in Private LawLiability for Nonfeasance and Negotiorum Gestio

Abstract

This book examines two problems in private law that are posed by the ‘good Samaritan’: First, do we have a legal duty to give aid to our fellow human beings? In particular: can we be held liable for damages if we fail to do so? Second, if we do come to the rescue, will we have any claim for the expenses that we incurred, or for a reward? This book examines and compares the responses of the Roman, French, German, and English legal systems to these problems, providing a treatment of English law in relation to ‘liability for nonfeasance’ (or ‘liability for omissions’) and negotiorum gestio (or ‘the doctrine of necessity’). In Part I, the book examines English law, which draws a distinction between action and inaction or ‘feasance’ and ‘nonfeasance’. In general, one is not held liable for failing to act. It explores the theoretical justifications for drawing this distinction and the different approaches taken in France and Germany, concluding that the English rule of no liability for nonfeasance requires reconsideration. In Part II the English approach to the problem of reimbursement or reward is examined, detailing its profound differences from the Continental European approach. In principle, English law does not grant the necessitous intervener a claim against the beneficiary of his intervention. The book examines the theoretical justifications for assuming this position and again concludes that the law deserves reconsideration. Finally, the book concludes by demonstrating close interconnections between the two traditionally independent issues.

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